Category Archives: Environmental

Canada and Nova Scotia Finalize Equivalency Agreement on the Control of Greenhouse Gas Emissions in the Electricity Sector

By: Nigel Bankes

PDF Version: Canada and Nova Scotia Finalize Equivalency Agreement on the Control of Greenhouse Gas Emissions in the Electricity Sector

Documents Commented On: Agreement on the Equivalency of Federal and Nova Scotia Regulations for the Control of Greenhouse Gas Emissions from Electricity Producers in Nova Scotia;Proposed Order in Council Declaring that the Reduction of Carbon Dioxide Emissions from Coal-fired Generation of Electricity Regulations do not apply in Nova Scotia, Canada Gazette vol 148 (2014), June 28, 2014 and the accompanying Regulatory Impact Analysis Statement

This Agreement is the first greenhouse gas (GHG) equivalency agreement to be finalized between Canada and a province. The Agreement and the accompanying draft Order in Council will serve to suspend the application of Canada’s Reduction of Carbon Dioxide Emissions from Coal-Fired Generation of Electricity Regulations, SOR/2012-167 (the federal Coal Regulations or the CFGRs) made under s.93 of the Canadian Environmental Protection Act, 1999, SC 1999, c 33 (CEPA, 1999) in the province of Nova Scotia. For comment on the CFGRs see the post by Astrid Kalkbrenner here. The Agreement will be of considerable interest to other jurisdictions (including Alberta) which are negotiating equivalency agreements with Canada to avoid the application of federal GHG regulations. While a draft of the Agreement has been available for a couple of years (see here, and for a very short summary of the two supportive comments received see here), and there are very few changes between the draft and the final version, what is new is the release of the Regulatory Impact Analysis Statement (RIAS) which casts some light on the methodology that the federal government will apply in assessing equivalency.

Continue reading →

The ‘Inherent Limit’ Post-Tsilhqot’in: Where Indigenous Law and Land-Use Planning Meet

By: Martin Olszynski

PDF Version: The ‘Inherent Limit’ Post-Tsilhqot’in: Where Indigenous Law and Land-Use Planning Meet

Case commented on: Tsilhqot’in Nation v British Columbia, 2014 SCC 44

The focus of this post, the fourth in a series of ABlawg posts on the Supreme Court of Canada’s Tsilhqot’in decision (see here, here,and here), is the concept of the “inherent limit” pursuant to which Aboriginal title lands “cannot be used in a manner that is irreconcilable with the nature of the claimants’ attachment to those lands” (Delgamuukw v. British Columbia, [1997] 3 SCR 1010, at para 125). From conversations with my colleagues here at the law school, there appear to be at least three concerns about this aspect of Aboriginal title law: that it is paternalistic, that it has never been satisfactorily sourced or rooted in indigenous laws (a complaint going back to Delgamuukw), and that it creates uncertainty for development. In this post, I propose an approach to what the Chief Justice in Tsilhqot’in described as the “negative proposition” (at para 15) that addresses each of these concerns (perhaps especially the latter two), while also addressing a more general concern with respect to Canadian Aboriginal law, which is to say the absence of any role for indigenous laws.

Continue reading →

Northern Gateway Approved Despite Uncertain Environmental Effects: Is This What Sustainable Development Looks Like?

By: Shaun Fluker

PDF Version: Northern Gateway Approved Despite Uncertain Environmental Effects: Is This What Sustainable Development Looks Like?

Decision commented on: National Energy Board, Northern Gateway Decision Statement

On June 17, 2014 the National Energy Board issued a decision statement to Enbridge under section 54(1) of the Canadian Environmental Assessment Act, 2012, SC 2012, c 19, s 52 announcing that the federal Governor in Council had approved the Northern Gateway pipeline subject to the 209 conditions recommended by the Northern Gateway panel (The panel report was the subject of earlier ABlawg comments here and here). The Governor in Council accepted the panel’s recommendations that the pipeline will have significant adverse environmental effects to populations of woodland caribou and grizzly bears, but that these effects are justified in the circumstances. I will comment on this approval by comparing it to another major resource project decision issued on the very same day, June 17, 2014 – albeit one issued on the other side of the globe in New Zealand.

Continue reading →

Greenpeace v Canada: Symbolic Blow to the Nuclear Industry, Game-changer for Everyone Else?

By: Martin Olszynski

PDF Version: Greenpeace v Canada: Symbolic Blow to the Nuclear Industry, Game-changer for Everyone Else?

Case commented on: Greenpeace Canada v Canada (Attorney General), 2014 FC 463 (CanLII)

In this lengthy (431 paragraphs) decision, the Federal Court allowed in part Greenpeace et al’s application for judicial review regarding the Joint Review Panel report(the Report) for the Darlington New Nuclear project proposed by Ontario Power Generation (OPG). Justice Russell held that the environmental assessment (EA) conducted by the Joint Review Panel (JRP) failed to comply with the Canadian Environmental Assessment Act, SC 1992 c 37 (as it then was). Specifically, there were gaps in the treatment of hazardous substances emissions and spent nuclear fuel, and a failure to consider the effects of a severe “common cause” accident. As noted by the media, while the decision is of limited effect on a project already indefinitely postponed by the province, “it is a symbolic blow to an industry coping with the public and political fallout from Japan’s 2011 Fukushima meltdown.” As further discussed below, the decision is also likely to have implications for EA in Canada generally and several other projects currently making their way through either the regulatory process or the courts, including Taseko’s New Prosperity mine, Enbridge’s Northern Gateway pipeline and Kinder Morgan’s Trans Mountain pipeline.

Continue reading →

North American Environmental Commission Investigating Tailings Ponds Leakage Not Deterred by Private Prosecution

By: Martin Olszynski

Decision commented on: Notification to the Submitters and to Council regarding a proceeding notified by Canada (SEM-10-002) (Alberta Tailings Ponds)

PDF version: North American Environmental Commission Investigating Tailings Ponds Leakage Not Deterred by Private Prosecution

Much has been written recently about the Fisheries Act, RSC 1985 c F-14, that often (and perhaps excessively) venerated piece of federal environmental legislation so maligned by industry and other private interests that the Conservative government, in its 2012 omnibus budget legislation, decided to tamper with its provisions in what has been described as a “gutting” (see here, here, here, here, and here) but that upon closer examination appears more like cosmetic surgery (which is to say, still unnecessary and unhelpful but mostly superficial; see e.g. the new policy from Fisheries and Oceans Canada). Still more ink has been spilled in the wake of the recently enacted Regulations Establishing Conditions for Making Regulations under Subsection 36(5.2) of the Fisheries Act, which the Department of Fisheries and Oceans (DFO) initially stated would have no impact on regulatees or the public at large while the private bar and environmental groups described them as marking a “significant shift in the regulatory regime for managing water quality in Canada” and as “another tangible and integral step in the overall de-regulation agenda.” Following the April 14 release of a decision of the Secretariat of the Commission for Environmental Cooperation (CEC) in relation to the alleged non-enforcement of section 36 of the Fisheries Act to Alberta’s oil sands (CEC Decision), I decided that it was time to spill some ink of my own.

Continue reading →